New Ulm weekly review., 1887-12-14


between the state and the citizen, certain rights
are reserved by the latter which are guaranteed
by the constitutional provisions for the pro-
lection of lfe liberty and property against de-
privation without due process of law and with
which the state cannot interfere: that az ong
these rights 1s that OF manufacturing for ones
own use either food or drink: that while ac-
cordlng to the doctrines Of the commune. the
state may contrL l the tastes, appeJites habits,
dress. food and drink Of the citizen. our system
Nof government, based upon the individuality
and intelligence of the people. does not claim to
control him except as to his conduct to others.
leaving him the sole judge as to all that only
proposition and the argument made in support
OF it equally concede that the right to manu-
Iacture Drink Tor ones personal use is subject TO
the condition that such manufacture does not
endanger or
fAFFEcT THE RIGHTS OF OTHERS.
IF such manufacture does prejudicially affect
the rights and interests Of the community, it
follows from the very premises stated by coun-
gel that society has the power to protect itself
Of that business. As was said in Mum VS.. Hi.
nois (94 U. S.. 124, while power does not exist
with the whole people to control rights that are
purely and exclusively private, government may
require each citizen to conduct himself and
so 20 use his own property as not unnecessarily
TO 1njure another. But by whom or by what au-
thority is it to be determined whether the man
ufacture Of particular articles of drink, either
Tor general use or for the personal Of the
maker. will injuriously affect the public? Power
to determine such questions so to bind all
must exist somewhere, else society will be at tho
mercy Of the few who, regarding only their own
appetites or passions, may be willing to imperi
the peace and security Of the many, provided
only they are allowed to do as they please. Under
our system that power is lodged with the legis-
lative branch Of the government. It belongs to
that department. to exert the police powers Of
the state 1t must determine primarily what
measures are appropriate or needful for the pro-
lection of the public morals. the public health
or the public safety 1t does not at all follow
from these principles that every statute enacted
Ostensibly for The promotion OF these ends is to
powers Of the state There are Of necessity
limits beyond which legislation cannot rightly
60. AS the courts muse obey the constitution
rather than the law-makins department OF the
government it must upon it's responsibility de-
termine whether in ANY particular case these
limits have been passed. The courts are not
by mere pretenses. They are at liberty-indeed
are under solemn outy-to look at the sub
stance of things whenever they enter upon the
inquiry. whether the legislature has transcribed
+ the limits of it's authority. IT, therefore,
statute purporting to have been enacted to pro-
tect the public health, the public morals or the
public safety, has no real or substantial rela-
tions TO those objects OF rights secured by the
fundamental law. it is the duty of the courts to
SO adjudEe and thereby give effect 10 the const;-
tuition. Keeping in view these principles as
governing the relations with each other Of the
judicial and legislative departments of govern
ment it is
DIFFICULT TO PERCEIVE ANY GROUND
for the Judiciary to declare that the prohibition
by Kansas OF the manufacture or sale within
/
there as a beverage is not fairly adapted to the
end OF protecting the community against the
Z evils which confessedly result from the excess
tificatlon for holding that the state, under the
guise OF police regulations, is aiming to deprive
tbs citizen Of his constitutional rights; for we
knowledge of all, that the public health, the
public morals and the public safety may be en-
da,,; dangered by the general use Of Intoxicating
by statistics accessible TO every one. that the
disorder, pauperism and crime prevalent in the
country are in large measure directly traceable
TO this evil II. therefore, state deems the alb
sclute prohibition Of the manufacture and sale
within her limits Of Intoxicating liquors
for other than medical. scientific and
manufacturing purposes 90 be necessary to the
peace and dignity Of society," the courts cannot,
without usnrping legislative functions, override
the will Of the people as thus expressed by their
chosen representa- tives. It Is fundamental
principle in our institutions indispensable to
the preservation Of public liberty, that one Of
these departments OF government shall not
usurp powers committed by the constitution to
another department. And so, ii In the judg-
Nnent OF the legislature the manufacture Of in
toxicating liquors for the makers own use as
beverage would tend TO cripple, if not to defeat
her efforts to guard the community against the
evils attending the excessive OF such liquors,
1t Is not for the COURTS upon their views as to
what is best and safest for the community, to
disregard the legislative determination OF Inat
question. So far from such a regulation being
inappropriate to the general end sought to be
the entire scheme OF prohibition, as
embodied die in the constitution and laws
OF each citizen to manufacture Intoxicating
liquors for his own use as beverage were recog-
nlZed. Such right does not inhere in citizen
ship. Nor can it be said that the government in
terferes with or impairs any ones constitutional
rlehts Of liberty or Of property when it deter
fs.nes that the manufacture and sale OF intoxi-
eating drinks for general or individual use as a i
beverage are or may become hurtful to society
ana an to every member of it, and is therefore a
Thia Pqsaness n which no one can lawfully engage
teenth amendment of tho constitution takes
from the states OF the Union those powers OF
police that were reserved at the time the orig
inal constitution was adopted. But this court /
Mas mas declared; upon f1I = consi6eration lin Bar
teenth amendment had no such etfect. -
THE PROPERTY oBJEcr1oN.
X Win reference to the assertion that the |
prohibition OF the manufacture aud sale of
liquor deprives liquor dealers OF their prom
erty without due process Of law, the court
says: g35s9-S ID.
All property nnder our form Of govern1nent IL
subject to the obisation that it shall not be
used so as to injuriously affect she rights Of the
community and thereby become a nuisance !
The State Of Kansas had q right to prohibit the !
liquor traffic It did not thereby take away the |
pro erty Of the brewers. 1t simply abated a |
nuisance The property is not taken away from |
Its owners. They are only prohibited from usin.
1e Tor specific purpose. which the legislature de-
tciared to be injurious to the community. For I
Mugler. the plaintiff in error. has not been de- /
MED by the JUDGMENTS Of the supreme conrt Of |
Kansas any right. privilege or Immunity se-
cured to him by The constitution OF che United |
States. and Its Judgment in each case Is accord- !
ingly affirmed We are also Of the opinion that |
the circuit court Of the United States erred il I
dismissing the bill of the state in her suit !
against Z,ebod and HaRslin. The decree in I
that case is reversed aud the cause remanded. I
with directions to enter decree granting to the I
state such RELIEF - the net Of March Z. 1885,
authorizes. ss558 81